May 2007 Archives

Updating a couple of stories recently covered here on Overlawyered:

• First rule of damage control: when you're in a hole, stop digging. A few weeks ago, we mentioned the West Virginia Attorney General Medicaid scandal (May 19) in which AG Darrell McGraw took it upon himself to spend state funds that he had recovered from Purdue Pharma after suing them for selling Oxycontin. This upset both the federal government, which argues that it has a legal right to some of these funds, and the state legislature, which felt that it should decide how to appropriate state funds. McGraw appears unapologetic and unworried about the federal investigation, but his office did promise the legislature that he would stop spending money. Now LegalNewsline reports that he's going back on that promise:

  Despite promises and a federal investigation, West Virginia Attorney General Darrell McGraw on Wednesday handed out even more of the settlement funds gained in a 2004 agreement with Purdue Pharma.

  McGraw gave $75,000 to the Kanawha Valley Fellowship Home, which will use the money for its drug treatment and education program. He says the program will affect 20 counties.

  The real problem here is not that the state legislature is annoyed -- that's local politics. The real problem is that if the federal government decides that it is entitled to a share of this money, the state is going to have to come up with millions of dollars to give to the federal government -- money that McGraw already spent.

• Three weeks ago, we noted that a prominent anonymous medical blogger, "Flea," was liveblogging his malpractice trial, and we discussed the ramifications for Flea's case. A few hours after we posted about this, Flea stopped -- presumably after his attorney had a fit. But apparently that was at least a few hours, or a few weeks, too late; Flea had left enough clues to enable the plaintiff's lawyer to figure out that Flea is Robert Lindeman, and she questioned him about it on the stand:

  With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

  The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.

  The Globe also quotes a trial lawyer as claiming that the plaintiff's attorney "had telegraphed that she was ready to share Lindeman's blog -- containing his unvarnished views of lawyers, jurors, and the legal process -- with the jury," although it's not clear to me how his views of lawyers, jurors, and the legal process would be relevant to a medical-malpractice case.

  Incidentally, Flea's blog is apparently now totally kaput.

Jack Thompson makes a lot of headlines around here for his quixotic anti-video game legal jihad. This crusade wastes court time and imposes legal expenses on video game makers. But if there's one mitigating factor -- admittedly, a small one -- in the whole mess, it's that at least his own legal expenses are coming out of his own pocket. The same can't be said for Illinois governor Rod Blagojevich, who is not only forcing video game makers to spend large sums of money, but his conducting his crusade against violent video games with other people's money:

The governor has spent nearly $1 million in taxpayer money to appeal a 2005 federal court ruling that a state law banning the sale of violent or sexual-explicit video games to minors was unconstitutional.

You may be wondering where he got the money for this crusade. Well, so was the Illinois state legislature, since they never authorized these expenditures:

A House committee discovered the amount spent to pay lawyers this week.

[...]

The governor raided funds throughout state government to pay for the litigation. Some of the areas money was taken from included the public health department, the state's welfare agency and even the economic development department.

"We had a strong suspicion that the governor was using funds appropriated by the General Assembly as his own personal piggy bank," Rep. Jack Franks, D-Woodstock, chairman of the State Government committee, said.

Those suspicions were confirmed when the governor's staff, testifying before the committee, admitted they just stuck state agencies that had available funds with the bills, he added.

But it's For The Children™, don't you know? (And the lawyers.)

Our own Ted Frank has an op-ed in today's Wall Street Journal. Excerpt:

...The plaintiffs' bar is heavily lobbying the SEC to intervene in a pending Supreme Court case, Stoneridge v. Scientific-Atlanta, on the side of a gigantic expansion of private litigation.

The case's facts are straightforward: Charter Communications purchased set-top cable boxes but got back some of the money in the form of advertising bought by the vendors. Charter executives recorded the outgoing money as a "capital expenditure" (to be depreciated over several years) but the incoming money as revenue recorded within a single year, thus falsely inflating operating cash flow. Three Charter executives went to prison over the shenanigans. Plaintiffs' attorneys sued Charter and the executives, of course, but named as codefendants two of the vendors, Motorola and Scientific-Atlanta.

The suit makes little sense. The vendors had no say in how Charter accounted for or reported its transactions. Worse is the precedent it represents: How can a business function if it is potentially liable for hundreds of millions because those whom they trade with misreport a day-to-day transaction?...

Indeed, a 1994 Supreme Court decision on its face cuts off such "secondary liability" claims, but hope of reviving them springs eternal in the plaintiff's bar -- one reason for the P.R. campaign aimed at putting pressure on officials like SEC Chairman Chris Cox. (Ted Frank, "'Arbitrary and Unfair'", Wall Street Journal, May 31)(sub-only)(cross-posted from Point of Law). Plus: here's the free AEI version.

H.A. Berkheimer Inc., a tax-collection agency that collects revenue for hundreds of school districts and municipalities, assessed collection fees against delinquent taxpayers in addition to interest and penalties. A class-action suit challenged the fees as improper and in the resulting proposed settlement Berkheimer is slated to pay $75,700 to aggrieved customers -- most of whom did not file for the $48.50 refunds -- while "lawyers with Bernard M. Gross of Philadelphia would be entitled to about $538,000". Most of a previous $2 million settlement pot will revert to Berkheimer if a judge approves the deal, while 25 percent will go to two charities, Mercer Museum's capital campaign and the Network of Victim Assistance of Bucks County. (Jenna Portnoy, "Deal would settle case for tax collection agency", PhillyBurbs.com, May 23).

Fort Lauderdale attorney William R. Cohen is asking $1 million in a suit against the Bushouse family of nearby Boca Raton, whose 2-year-old terrier Taz, he says, bit his left nipple. Readers keep directing our attention to the final clause in the list of recited damages, which list consists of "medical treatment, loss of income and for general damages for pain, suffering, physical disfigurement and 'loss of sexual comfort and desire'." (Chrystian Tejedor, "Nipped on nipple, man sues", South Florida Sun-Sentinel, May 26).

Reporter Jay Miller quotes me and mentions this site in an article on ADA mass-filing operators; the piece should be available on a registration basis for a few more days before becoming subscriber-only (Jay Miller, "Flood of lawsuits filed under Disabilities Act", Financial Week, May 28). This site has been covering ADA filing mills for years and years; see Apr. 15, Mar. 27, and many other entries on our disabled-rights page.

Nina Kay MacDermid was bipolar and suffered from drug and alcohol problems. Discover Financial Services did not know this when she successfully obtained a card in her husband's name and charged $15,000 worth of exotic cats and computer products and other shopping, despite her husband having forbidden her from having credit cards because of her previous manic spending sprees that sent her into personal bankruptcy. MacDermid also obtained cards from American Express and others, but it was checks from Discover that her husband intercepted and confronted her over on February 14, 2003. Ms. MacDermid overdosed on drugs, and was admitted to the hospital for five days that week, but later managed to commit suicide in June, which Mr. MacDermid claims in his lawsuit was a surprise. Mr. MacDermid complained to Discover in March that he had not authorized the card, but sued Discover, claiming that Discover's resulting attempts to collect on Ms. MacDermid's debts from the cancelled card was what actually drove her to suicide. (A psychiatrist conveniently submitted an affidavit that MacDermid would have been peachy keen if not for Discover's actions, notwithstanding her substantial history of mental illness.) A magistrate judge dismissed the case under 12(b)(6), but the Sixth Circuit, in an opinion by Judge Boyce Martin, resuscitated it on a theory that Discover's allegations of criminal violations may have been an intentional infliction of emotional distress. The opinion does not cite this month's Twombly decision, which perhaps explains the wild save of the almost-surely doomed case, and Discover will now have to spend additional money defending it—which is why your credit-card interest rates are so high. (MacDermid v. Discover Financial Services (6th Cir. May 29, 2007) (via Bashman)). The opinion contains a variety of gratuitous slams at Discover for being a victim of MacDermid's fraud.

• Both sides agree to drop litigation in Islamic Society of Boston mosque-building controversy (Herald, Globe; earlier here, etc.)


• Australia's Slater & Gordon becomes world's first law firm to list itself on stock exchange (SMH, Ribstein; Regan/MacEwen/Ribstein; more)


• Colo. bar-restitution fund strained after lawyer who "hoped to save the world" plunders $5 million from clients to fuel strip-club-enhanced lifestyle (Rocky Mountain News)


• A trend? Another restaurant sues over negative review (Delmonico Grill in Port St. Lucie, Fla. against Scripps Treasure Coast Newspapers and reviewer Patricia Smith; Hometown News)(earlier)


• Ontario appeals court deems bite of West Nile-infected mosquito to be "accident" triggering insurance coverage [Harikari]


• Nanny may I? Chicago bans actors on stage from smoking as part of theatrical performance (Lambert); Vancouver condo owner faces suit for smoking on her own patio (AHN, Vancouver Sun); Montgomery County, Md. becomes first county to vote to ban trans fats (Gillespie)


• Nevada bench colleagues intervene with Judge Elizabeth Halverson: it's just not done to call your clerk "The Antichrist" or ask court staff to give you foot rubs (Morrison, LVRJ). More: Above the Law;


• Midwifery in crisis: one D.C. birthing center's struggle to keep its doors open (WaPo)


• Some advice: if you're claiming disability benefit, you might not want to enter and win a strongman competition in which you lift the front end of a car (Telegraph, U.K.)


• Judge rejects Utah lawyer's claim that CBS should pay him $5,000 for exposing him to Janet Jackson's Super Bowl wardrobe malfunction (three years ago on Overlawyered)

One of the more subtle tricks in the plaintiffs' bar's arsenal is the use of the class action to shut down the customer relations of a consumer products company. A company acknowledges a problem, tries to work with its customers to resolve the problem—and lawyers whose only previous role in the case was to read newspaper headlines about the problem swoop in, file a class action, and demand that the defendant stop contacting "their clients," nearly all of whom had no role in selecting the attorney. Later, the litigation lobby points to the role that the class action had in resolving the problem in defense of litigation as a solution, and no one remembers that the class action was what prevented the problem from being solved to consumers' satisfaction in the first place.

A notice on the Menu Foods website posted May 24 suggests that precisely that has happened in their pet-food recall case, and Menu Foods, a victim of mislabeled food from a supplier, will not be able to compensate their customers without paying a gigantic commission to parasitic trial lawyers first.

Update: USA Today has a one-sided account reflecting a judge parroting the plaintiffs' attorneys' characterizations of the contacts. Without a full listing of the facts, we cannot tell whether the Menu Foods example is a good one; unfortunately, USA Today did not see fit to tell the whole story.

Secretary Caryl Dontfraid claims that her disability requires her to have a desk by a window at her New York law firm (Binder & Binder, which specializes in social security disability claims), rather than one three feet away from a window; when she didn't get her preferred seating assignment, and refused to try the desk she was assigned, she was fired. "She wanted to work closer to a window with good light," her attorney, Robert Campos-Marquetti told the New York Daily News. "This is a request that could have been easily accommodated." The damages claim is $33 million, or about half of a pair of pants. (Mike Jaccarino, "No window desk? That'll cost you $33M, she says in suit", May 26 (via Kevin MD)).

Ed Murnane of Illinois Justice Blog has a good post on how the efforts of Illinois trial lawyers to return to the bad old days of full joint and several liability would impact cases like that of dead drunk driver Josh Hancock's family (May 24).

Sally Lucia was suffering from a massive infection, apparently from an earlier tummy-tuck surgery twenty days earlier. (She settled with the plastic surgeon before trial.) Lucia went to the emergency room already in septic shock, with her fingers and feet turning blue. On-call surgeon Dr. George Haedicke left his children, and arrived at the hospital to find Lucia's infection so far advanced that her organs were shutting down; he cared for her for four and a half hours, and other doctors removed a grapefruit-sized infection from Lucia's abdomen before transferring her to another hospital in critical condition. By this time, the tissue below her calves and in her fingers had died, and she needed amputations. A jury found Haedicke 20% responsible and his hospital 40% responsible, awarding $30 million in damages. But the jury found that Haedicke did not act with reckless disregard, immunizing him under Florida law protecting emergency doctors. Lucia, subject to appeal, will have to make do with $12 million from the hospital plus her earlier settlement. (Thomas W. Krause, "Patient Wins $30 Million", Tampa Tribune, May 25; Justin George and Colleen Jenkins, "Amputee Wins $30 Million", St. Petersburg Times, May 26; Colleen Jenkins, "Jurors hear from both sides in amputee trial", St. Petersburg Times, May 10).

Press coverage is scanty on the critical question, but the Tampa Tribune Haedicke ordered "medicine that focused blood flow to the inner part of her body to protect her vital organs." As a result, Lucia lost her legs and most of her hands, but her life was saved. Lucia's attorney, Steve Yerrid (Oct. 5-6; Jan. 27), claims that Haedicke should have administered fluids before the medicine; Haedicke says that Lucia would have died if he had administered fluids first because her kidneys would have failed.

Now, I don't know whether Haedicke or Yerrid is correct (though I have my suspicions). I'd be curious to hear what the medical bloggers think. But I don't see how this should be a jury question. Either it was a reasonable exercise of medical judgment to try to save Lucia's life without administering fluids first or it wasn't, with the question of liability being a natural result of that answer—one of the two experts in the case is lying, and the expert and attorney who propounded that testimony did so without consequence.

Haedicke has left Tampa to practice in Tallahassee.

(Update: there has been some med-blogging over the Memorial Day weekend. Clinical Cases; Kevin MD.)

One of the secrets of so-called "pro bono" work is that it often isn't pro bono at all. Instead, it's really contingency work: firms don't bill their clients, but if they win, they recover their fees under various statutes, such as the Voting Rights Act, that require the loser -- often the government -- to pay the attorneys fees of the winner. These statutes are designed to incentivize law firms to take these cases -- cases where the plaintiffs often can't pay and where there's no big monetary award at stake from which the attorneys can take a cut.

But if the attorneys would take the cases anyway, even if they didn't get paid all that money, does it really make sense for the courts to award them all their fees? Last month, in a Voting Rights Act case, the Second Circuit said, "Not necessarily." (PDF.) Rather, the courts should look at how much the plaintiffs would have to pay in the marketplace to convince lawyers to take the cases, and should award fees on that basis. The courts should consider whether these lawyers are really taking the cases "to promote the lawyer's own reputational or societal goals" -- and if so, the court should only award a portion of the fees. (One factor the Second Circuit glosses over is that many of the large law firms that take these cases -- Gibson, Dunn & Crutcher handled this particular case -- don't really care about the fees; they really use these cases as a way to provide free training to their younger attorneys without having to risk cases involving their paying clients.)

(Gibson, Dunn's credibility when making their fee request presumably wasn't enhanced by the fact that they had previously tried to bill over $100,000 for 300 hours of work when "the entire argument section of the brief on this single-issue appeal occupied barely six pages.")

But Adam Liptak (Time$elect, May 28) reports that many civil rights groups and other "public interest organizations" are up in arms over this decision, terrified that they might be forced to shop around for attorneys instead of getting taxpayers to pay for attorneys at the highest big firm rates for their causes:

In a flurry of legal filings last week, the lawyers, supported by two bar associations and 29 public interest organizations — including the Urban Justice Center, Public Citizen, the Natural Resources Defense Council and several affiliates of the American Civil Liberties Union — begged the court to reconsider.

“It really is a dangerous decision,” said David Udell, a lawyer with the Brennan Center for Justice at New York University, which represents the public interest groups. “What the court does is say that legal work is less valuable when the lawyers’ hearts are in it.”

That's not actually what the court said at all; what the court said was that lawyers shouldn't get paid more by taxpayers than they would if they were hired on the open market.

Here's a free tip for trial lawyers out there: if you're going to engage hired-gun experts witness to tell the court what you need it to hear, make sure you first tell the experts what you need the court to hear.

We've been covering the ongoing scandal in which class action law firm Milberg Weiss is accused of paying kickbacks to its clients in class action lawsuits (see, e.g. May 2006 and links from there). In addition to the firm, prosecutors have been going after the clients who accepted kickbacks (Feb. 2007, Jun. 2005). One of those clients, Seymour Lazar, has been trying to escape prosecution by claiming to be ill, trotting out doctors to testify to a "litany of ailments," including "heart disease, stroke, cancer, diabetes, and gout." But there's more: he also claimed to be suffering from a "mental condition [that] could make following significant events of the trial impossible," as well as "major depression, memory loss, and fatigue." And, he's mentally incompetent.

That was two weeks ago... Now he's all better. Turns out that if he were mentally incompetent, the prosecution could lock him up for up to four months to determine whether he would become competent in the future. Whoops! That wasn't what defense attorneys wanted. So they had to repudiate their own expert's testimony:

A psychologist who testified that a defendant was not competent to stand trial in a federal criminal case against a leading class action law firm now says that assertion was mistaken.

[...]

"I believe that I testified in error when I stated that he is not competent," the psychologist retained by the defense, William Jones, wrote in a declaration filed Monday in federal court in Los Angeles.

Yes, or maybe, like the Monty Python peasant who claimed to have been turned into a newt, Lazar mysteriously "got better."

The quack theory that thimerosal causes autism is getting a hearing in trials in Federal Claims Court in June, with the possibility of bankrupting the vaccine compensation program, and substantially hurting public health as a consequence. Slate has coverage, but underplays the role of plaintiffs' lawyers in the bogus activism. Trial lawyers looking for a cash cow have seized upon the quackery, and, with the help of unethical shills like Robert F. Kennedy, Jr., have dissuaded parents from vaccinations across the country, leading to new disease hot spots. Remember that the next time you hear the plaintiffs' bar (falsely) taking credit for safety innovations that have saved lives. Earlier: Jul. 16 and other Overlawyered coverage; and Point of Law coverage. Orac has regularly blogged on the issue, and his April 30 entry is also worth reading.

Jack in the Box is known for its humorous ads, but Carl's Jr. is upset about an ad for Jack's sirloin burger that makes fun of competitors' Angus burgers. (Sirloin is a cut of meat, while Angus is a type of cow; the joke is, well, see the commercial.) So Carl's is suing on grounds of "deceptive advertising." (Alana Samuels, "Carl's Jr. has a beef with Jack in the Box advertising", LA Times, May 26).

A great opportunity for recent college graduates with good grades interested in legal issues and public policy: my current research assistant is Princeton-bound to get the Ph.D. that will give him a better resume than mine, so the AEI Liability Project is hiring, and hiring very soon:

Research Assistant: Liability Project

Seeking a full-time research assistant for the AEI Liability Project. The Liability Project examines the institutions, procedures, and political economy of contemporary liability law through research, publications, and other activities.

This position provides research support on issues related to American federalism and tort reform through case and brief retrieval, citation checking, case summarization, and legal analysis. It will also involve cultivating relationships with academics and practitioners in the field and overseeing the production of several monographs per year, as well as such administrative tasks as conference planning, editing, mass mailings, and data entry.

The ideal candidate will have excellent organizational, writing, and editing skills, as well as an interest in public policy and/or tort reform. Legal research experience and a background in economics preferred.

Qualified applicants should submit a resume, cover letter, and a 500-word writing sample on any topic with their online application.

This position will be available Summer 2007.

More information about applying, including a link to a Washingtonian article naming AEI as one of 55 great places to work in Washington. (Don't contact me directly; all hiring is done through AEI Human Resources, but successfully indicating that you've been a regular reader of what I've been writing will surely help.)

Score another one for personal responsibility: 29-year old St. Louis Cardinals pitcher Josh Hancock killed himself in April when he drove -- faster than the speed limit, drunk, on a cell phone, and not wearing a seat belt -- into a tow truck stopped on the side of a road. Obviously, we ought to blame... everyone except Josh Hancock for this. Three and a half weeks after the accident, his father has filed suit in St. Louis against: the restaurant where Hancock was drinking, the manager of the restaurant, the tow truck driver, the towing company, and (!) the driver of the stalled vehicle that the tow truck was assisting, for having the temerity to get his car stuck on the side of the road.

So far, he hasn't sued the Cardinals or Major League Baseball, but, while praising the team, his lawyer pointedly refused to rule out suing them.

Clearly, his father's attorney isn't all that creative; think of all the other people responsible for this accident:

• The cell phone manufacturer; Hancock couldn't have been talking on the phone if they hadn't been so negligent as to invent it, or if they had placed warnings on the side of the phone about not using it while driving.
  
• Hancock's girlfriend -- she was on the other end of the phone. Plus, he was driving to meet her.
  
• The owners of the bar he was driving to in order to meet his girlfriend. If they had been closed, he wouldn't have been driving there; if they were easier to find, he wouldn't have had to give his girlfriend directions.
  
• The car rental company; Hancock was driving a rented SUV... because he had just had an accident in his own car. If they hadn't rented him the SUV, he couldn't have been driving it.
  
• Anheuser-Busch, it goes without saying; no alcohol, no accident.
  
• The Cardinals, for not trading him to another team; if he hadn't been in St. Louis, he couldn't have crashed.

While it's hardly unusual nowadays to blame bars for injuries caused by serving drunk patrons, those suits typically involve injuries to third parties. It's not clear to me from a quick perusal of Missouri statutes that the bar can be liable for injuries caused to the drinker himself, but the key may be in this sentence from the Post-Dispatch story, quoting the complaint filed: "The intoxication of Joshua Morgan Hancock on said occasion was involuntary." Yes, they forced the alcohol down his throat.

I wonder if the tow truck company will countersue for the damages Hancock caused to their truck by crashing into it. That would be poetic justice, at least.

Update: KMOV has a copy of the complaint. (PDF)

The New York Times has another front page story. Earlier coverage on Overlawyered.

Taser International stock dropped from $33 to $6 in 2004-05 after the plaintiffs' bar engaged in a huge publicity campaign challenging the safety of Taser devices. Taser claims this week that it has won its 45th straight products liability case. ("Taser wins 45th-straight court case", Business Journal of Phoenix, May 21). Little celebration to shareholders, as the stock is still in the single digits, perhaps because of the overhang: those 45 victories can be completely undone if a 46th court awards bankrupting punitive damages.

As Walter noted in November, Taser Int'l. is hardly innocent of engaging in litigation itself, though its suits against medical examiners seek only a change in ruling, and not damages. (Karen Farkas, "Taser sues over 'cause-of-death' rulings", Cleveland Plain-Dealer, Nov. 21). Kohler's motion to dismiss for lack of standing was denied in January, and the case is in discovery. Taser has also sued an expert witness who testified against it in a losing case. (Taser 10-Q, May 2007).

Earlier discussion of Taser litigation: Feb. 17, 2006.

This week, NEJM released a meta-analysis that, after omitting six studies where there were no cardiac events, found a barely statistically significant relative risk of 1.43 of myocardial infarction from long-term use of diabetes drug Avandia (rosiglitazone). (A slightly higher relative risk of death from cardiac causes was not statistically significant, though also just barely.) Reuters reports that plaintiffs' lawyers are deciding whether they can create a mass tort litigation against GlaxoSmithKline, though some already confidently predict that they will (which suggests how important the supposed due diligence required by the rules and being conducted now is). Note that a relative risk of 1.43 means that 70% of people who suffered heart attacks while taking Avandia would have had heart attacks anyway. Avandia's warning label already warned of the risk of cardiovascular adverse events. (Cross-posted from Point of Law)

Update: Interesting analysis at one of the medical blogs.

Did you ever watch a movie and think, "I could have made that movie"? Well, if actually making the movie proves to be too difficult, here's an alternative strategy: you could just write to the Internet Movie Database and demand that they give you credit for having produced it. But, unfortunately for those of you who like to take shortcuts, it turns out that IMDB has this silly policy of only crediting people for their work on a movie when those people appear in the movie credits.

So, there's always Plan B: sue IMDB. That's what David Kronemyer did. He wanted to be credited as executive producer of hit movie My Big Fat Greek Wedding, B-movie Wishcraft, and TV-movie Stand and Be Counted. (I'm ashamed to admit that I've actually seen Wishcraft; I think the people who should sue are the ones who did get blame credit for making it.)

Fortunately, this story had a reasonably happy ending: Kronemyer was sanctioned by the California judge hearing the case for bringing a SLAPP suit, and ordered to pay $6,270 to the IMDB to compensate it for attorney's fees. (Although, as Shaun Martin notes, that probably doesn't fully compensate the IMDB.) The fact that Kronemyer had virtually no evidence to support his demands presumably didn't help his case; he had a document showing that at one time he might have been involved with My Big Fat Greek Wedding, and nothing at all for the other two movies. But this complete lack of evidence didn't seem to deter Kronemyer; he actually appealed the lower court's dismissal of his lawsuit. The court of appeals wasn't impressed (PDF).

Kronemyer represented himself, so it might seem unfair to blame lawyers for this one -- except that Kronemyer's a lawyer himself. Well, sort of; he actually resigned from the bar with unspecified disciplinary charges pending.

We regularly complain about the fact that the legal system is unable -- or at least unwilling -- to police attorneys who violate the rules. But this failure is not limited to the plaintiff's bar in civil cases. Lawrence Floyd was a prosecutor in Cuyahoga County who, according to the judge, "deliberately committed prosecutorial misconduct" by making unconstitutional remarks at a murder trial, forcing the judge to declare a mistrial.

His punishment? A $26,000 fine -- the amount that a new trial will cost taxpayers. Sounds reasonable, right? Not quite: the judge declined to fine Floyd; instead, she fined taxpayers that amount of money. That'll show him.

(via Crime & Federalism)

Australia: "A bullied teenager will receive substantial damages and an income for life after a Supreme Court judge found NSW educational authorities failed in their duty of care to deal with playground assaults and bullying." The court heard testimony that Benjamin Cox, now 18 years of age, was severely bullied at school by an older, disturbed pupil. 'In her judgement, delivered today, Justice Carolyn Simpson commented that Mr Cox's "adolescence has been all but destroyed; his adulthood will not be any better. He will never know the satisfaction of employment. He will suffer anxiety and depression, almost certainly, for the rest of his life'". Cox's mother said that because of the bad experience with classmates her son "didn't like crowds, he didn't like teachers, didn't like the work," and "just locks himself in his room playing PlayStation games". The New South Wales state government may appeal the A$1 million verdict. (Leonie Lamont, Sydney Morning Herald, May 14; "Govt considers appeal on bullied boy", AAP/Melbourne Age, May 22).

Massachusetts is considering becoming the second state to ban it (Ken Maguire, AP/Chicago Sun-Times, May 18).

"An outfit accused of having a long history of making spyware has sued PC Tools, the maker of Spyware Doctor for preventing its product from working." (Nick Farrell, The Inquirer, May 21). Reports InfoWorld:

According to a posting on a blog called Spamnotes.com, Zango is seeking at least $35 million in damages, alleging that Spyware Doctor removes Zango's software without warning users that it will be deleted. The lawsuit was filed Tuesday in King County Superior Court in Seattle, according to Spamnotes.com.

Formerly known as 180solutions, Zango is trying to clean up its tarnished reputation. In November it paid $3 million to settle U.S. Federal Trade Commission charges that its software was being installed deceptively on PCs.

PC users have complained that the software has been installed without warning, forcing them to endure unwanted pop-up ads. The company has also been accused of tracking user behavior and making its software too difficult to remove.

(Robert McMillan, "Zango sues antispyware vendor PC Tools", May 18; Slashdot thread; Grant Gross, "FTC settles with adware company", InfoWorld, Nov. 3; Jeremy Kirk, "Reformed adware vendor still under fire", Jul. 17; Slashdot thread, Jul. 10, 2006).

• Class action lawyer on the divvying up of $6.9M of attorneys fees among 79 attorneys: "There were two firms that . . . we generously gave a substantial award that really didn't do anything for the common benefit." But the award is still under seal; the Fifth Circuit is now considering. WSJ: "Unsealing the records would be a good first step, but Mr. Barrett's statements suggest that the juiciest story is not how the money was divided among the lawyers, but how 79 lawyers extracted nearly twice as much from the defendant for themselves than they won for their 81,000 clients. Just another day at the office for the tort bar." We reported Apr. 9. [W$J]
• Street vendor sign of "180-degree coffee" reminds professor that McDonald's coffee isn't all that relatively hot. [Childs]
• Briefing from the Pearson pants case (Apr. 26, etc.). [On Point]
• FDA scandal! Or is it? Is it really the case, as some claim, that safety is never too expensive? [Point of Law]
• Trial lawyers and Jay Angoff, at it again, incredibly accusing a non-profit mutual med-mal insurer of gouging. [RiskProf]
• "Treating patients is a lot harder for this physician—and much less fun—in a climate of fingerpointing." [Medical Economics via Kevin MD]
• Are abuse victims squandering their moral authority? [Commonweal]

U.K.: Fast-food giant Kentucky Fried Chicken has backed off its attempt to browbeat the proprietress of the Tan Hill Inn in North Yorkshire into no longer billing her traditional Christmas dinner as a "Family Feast". In a letter from its lawyers, Freshfields, KFC had claimed trademark ownership of the phrase. (Will Pavia, "Fast food giant is licked in battle with pub", Times Online, May 11; Weigel, Reason "Hit and Run", May 10).

Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded "the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience." But state governments "have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume's next novel. ...The MPAA's response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control." (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.

Eddie Wise got along by cadging a dollar here and a dollar there from strangers in the Bronx. Not in a thousand years would he have dreamed of waking up with $100,000 in his pocket, had he not had the good fortune to be wrongfully arrested. Thanks, NYC taxpayers! (Jennifer Gonnerman, New York magazine, May 14).

On Staten Island, New York, "Jean Gonzalez is suing a beloved veteran coach for not teaching her son Martin how to slide properly". The boy, 12 at the time, was hurt sliding into second base. Coach Leigh Bernstein, along with "the New Springville Little League, and its international umbrella organization, Little League Baseball and Softball Inc., are all named as defendants in the suit, which charges them with never teaching him 'skills needed to avoid and/or minimize the risks of injury,' specifically how to run bases and slide." (James Fanelli and Mike Scholl, "Base Accusation", New York Post, May 20).

Or maybe a few thousand, depending on how many readers send in for them: a judge has approved a settlement between Random House and class action lawyers who claimed that consumers had suffered injury from purchasing writer James Frey's fictional autobiography, A Million Little Pieces. Earlier: last April 19 and many previous posts. As Ted reported early on in the controversy, Random House long ago offered refunds to dissatisfied readers of the book. (Thomas Zambito, " Author's $2.3M lie", New York Daily News, May 18; "New York Judge Tentatively Approves Refunds for Buyers of James Frey's Fabricated Memoir", AP/FoxNews.com, May 18).

P.S. Here's more from WSJ Law Blog, as well as a post of theirs from when the settlement was announced.

Following up on our Mar. 13 and Apr. 25 coverage: "Madison County Circuit Judge Nicholas Byron awarded Amanda Verett a $311,700 default judgment for injuries she allegedly received while holding a Pizza Hut door open for a Troy police officer." Verett obtained the default judgment against defendant Clarence Jackson; co-defendant Pizza Hut filed a defense, so it will presumably be entitled to face a trial separately. Verett says her shoulder was jarred when Jackson suddenly moved the door or allowed it to move. According to testimony from her husband, she also slipped and fell on ice and snow on her driveway four days later; the couple appear to blame her injuries from that fall on her earlier bad experience with the Pizza Hut door. It's a small world, lawsuit-wise, in the far-famed Illinois county: the chiropractor who's been treating Verett, Mark Eavenson of Granite City, "is best-known as the most prolific filer of class action lawsuits in Madison County". (Steve Gonzalez, "Byron awards $311,700 to Pizza Hut door victim", Madison County Record, May 16).

Most recently: May 15; at American.com.

• Curlin, the horse owned by fen-phen fraudsters Gallion and Cunningham, won the Preakness by a head. Curlin's trainer is apparently ensconced in his own scandal, having served a six-month suspension for illegally drugging horses. (Andrew Beyer, "Making a Run for It", Washington Post, May 20; Jennie Rees, "Curlin camp a crowded place", Louisville Courier-Journal, May 20).
• Stan Chesley did not even show up to the court-ordered May 16 mediation session, allegedly forcing a rescheduling until May 23. (Chesley's attorney says he was in contact with his client at the hearing.) Plaintiffs have asked for sanctions. (Paul Long, "Mediation over lawyer fees fails", Cincinnati Post, May 18).

We've extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service's hosting ads for housing and roommates that fall afoul of non-discrimination laws—it's technically illegal for a woman to say that she's looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act's immunity provision by being an "information content provider" because it is "responsible, in whole or in part, for the creation or development of [the] information":

"By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing."

Worse, Judge Kozinski's opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:

Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.

Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it's just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)

This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel's fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.

Elsewhere on the Internet: Volokh; Eric Goldman; Adam Liptak @ NYT; Slashdot; Laura Quilter; Aaron Perzanowski; Lillian Edwards; The Register. Joe Gratz has purchased harassthem.com.

Volokh separately argues the underlying laws are unconstitutional as applied to roommates.

I had an op-ed in the Wall Street Journal yesterday on the subject, hailing the recent California state court decision which recognized the unethical nature of that class of fee arrangements for public counsel. More at Point of Law here; Ted had a related post on Wednesday.

Peter Lattman reported on Gary Farmer, a Florida judge who decided to try his hand at humorous legal writing in the course of deciding a lawsuit. Discussion of the opinion around the internet (see, e.g., Orin Kerr) focused on the propriety of a judge turning his job into a forum for self-promotion. Regardless of whether judges are allowed to have fun with their work, in my opinion, it wasn't very funny at all. But perhaps I had lost my sense of humor after reading the ridiculous nature of the lawsuit.

The case was brought by the owners of the championship racehorse Funny Cide against the publishers of the Miami Herald, for a newspaper report that the horse's jockey had used an illegal device to help him win the Kentucky Derby. The report was false, and the paper ran a correction. But that wasn't good enough for the owners of Funny Cide; they sued in May 2005.

Their complaint? Although Funny Cide won the Preakness, the false report caused the horse to lose the Belmont Stakes, and hence miss out on the Triple Crown, which would have been worth large sums of money.

Their theory? Funny Cide's jockey was so motivated to disprove the false report that he worked the horse too hard in the Preakness, which tired the horse out so it couldn't win the Belmont three weeks later.

As you can imagine, this theory is (to use the technical legal term) loony. Even if they had a snowball's chance of proving causation -- as if there were no other possible reason a horse might lose a race? -- they would also have to show that it was foreseeable by the Herald that their report would cause this to happen. This they obviously could not do, and so the court granted summary judgment to the newspaper. What makes this case especially egregious, though, is that the humorous opinion being discussed above wasn't written by the trial court; Gary Farmer is an appellate judge. That's correct: the horse's owners appealed the dismissal of their frivolous lawsuit.

In case you were wondering, Bruce Rogow was listed as one of the attorneys for the horse's owners.

Mr. Rogow has taught Civil Procedure, Federal Jurisdiction, Constitutional Law, Appellate Practice, Criminal Law and Legal Ethics.

One of the tricks states have used in recent years to raise money without raising taxes is to sue companies for the products they manufacture, on the legal theory that the use of those products lead to increased state health care spending. (The most prominent example, obviously, is the tobacco Master Settlement Agreement.) Not surprisingly, it often turns out that this legal theory is more of a pretext by state attorney generals to get their names in the paper than it is to actually remedy the alleged harms caused by the companies.

In 2004, West Virginia settled with Purdue Pharma, the manufacturer of Oxycontin, over the increased Medicaid costs allegedly caused by addiction to the drug. The settlement was worth $10 million. Logically, then, that $10 million should have gone to the state's Department of Health and Human Resources to defray Medicaid costs. But there was a problem. Two problems, actually. The first was that giving the money to the DHHR wouldn't allow Darrell McGraw, the state Attorney General, to dole out money as he saw fit. The second was that the state shares its Medicaid expenses with the federal government, so giving money to the DHHR would enable the federal government to recover part of the settlement.

The first issue has caused political controversy in West Virginia, because McGraw has given out the settlement proceeds to pretty much everybody except the underfunded DHHR, including private law firms that he hired to work on the case. But even the money that the state actually kept was handed out by McGraw based on his personal whims ($500,000 to establish a state pharmacy school (!) at the University of Charleston) rather than by the state legislature, which is constitutionally tasked with making spending decisions about state money.

But the second issue may be causing legal controversy. Legalnewsline reports that the federal government is now investigating the state's handling of the funds, trying to find out why it hasn't been credited for its share of the Medicaid funds. But it's not as if it's a secret; the deputy attorney general recently testified as to their thinking:

"We have arranged a methodology that has prevented the federal government from coming back and seizing money," Hughes said.

Or maybe not. If you're going to try to cheat the federal government, you should probably be a little more subtle about it. No formal charges have been filed, to be sure, and the federal government may simply resolve the problem by withholding future federal payments to the state. But that certainly won't fix the problem caused by McGraw's behavior; it will leave a large hole in the state's budget which could make them worse off than if he hadn't sued Purdue in the first place.

No, not $2,402 each. The $2,402 represents the total redemption of coupons by a 1,500,000-member class, or $0.0016 per class member. The Illinois state court (in the judicial hellhole of Cook County) awarded plaintiffs' attorneys Gary K. Shipman of Shipman & Wright $1,000,000, presumably because they represented the face value of the unlikely-to-be-redeemed coupons to be in the millions of dollars. A North Carolina state judge was not impressed after he forced the forum-shopping attorneys (and defendants) to reveal the results of the settlement before dismissing a parallel lawsuit. (Moody v. Sears, Roebuck, & Co.) (via Nick Pace of RAND Institute at CL&P Blog).

Note that the widely-publicized Eisenberg/Miller class-action study, regularly cited for the proposition that state courts were no worse than federal courts in terms of awarding attorneys' fees, would have erroneously calculated this attorney fee as 14% or so of the total settlement value, rather than the actual number of 100%. Garbage in, garbage out.

Pace mistakenly thinks that the class members were deprived of a remedy. Not really, though consumers are certainly worse off because of such litigation. Problems like this arise because a Sears is only willing to settle a frivolous consumer-fraud suit for nuisance amounts, and the plaintiffs' attorneys just want a paycheck, so Sears is willing to pay the protection money to make the meritless lawsuit go away, since it will cost more in litigation expense to defend itself. When neither the plaintiffs' attorneys nor the judge cares about the class members, plaintiffs' attorneys can extract, as here, 99.9% of the settlement amount. If, on the other hand, a court ensures that the majority of a nuisance settlement must go to the ostensible plaintiffs, the plaintiffs' attorneys will be less likely to find it profitable to bring the meritless suit and try to extort a settlement, because defendants will be more likely to find it worthwhile to defend against the suit, and the suit won't happen in the first place. Which does make consumers better off, because then they realize a substantial part of the savings of doing business when there's less protection money paid off to plaintiffs' lawyers like Gary Shipman.

The Class Action Fairness Act fixes these matters—or at least it does in the cases where federal judges apply its rules and accept jurisdiction. First, CAFA effectively consolidates national class actions into a single federal jurisdiction, defendants are unable to play one plaintiffs' attorney off of another, as happens when plaintiffs file several dozen identical and parallel class actions. Second, CAFA requires federal judges to apply meaningful scrutiny to class-action settlements and the award of attorneys' fees, especially coupon settlements like this one. A $2402 coupon redemption with a million-dollar attorneys' fee would have been impossible under CAFA.

When, however, judges misread the jurisdictional provisions of CAFA and remand legitimate removals back to the state courts that routinely approve such travesties, they undo the whole point of the legislation, and hurt consumers in the bargain. That Public Citizen regularly argues for such narrow readings of CAFA suggests their true interests lie with trial attorneys, rather than consumers, and that the true consumer advocates are those who support civil justice reform. (Cross-posted to Point of Law)

The misnamed Center for Science in the Public Interest, fresh from their loss earlier this month against KFC (May 3), has sued Burger King on the same theory that the legal act of selling foods that contain trans-fats is actionable. (Burger King discloses trans-fat content on its website, so any claim of failure to warn is patently false.) CSPI's Stephen Gardner self-servingly writes about the suit on the Public Citizen blog without once mentioning the earlier slapdown, much less the fact that the reason trans-fats are so prevalent in the American diet today is that CSPI and its ilk worked so hard to persuade people to use trans-fats instead of saturated fats in the 1980s through similar tactics. CSPI should be suing itself. The question is why courts condone the misuse of the legal system to act as a public-relations device.

• Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
• Judge thinks better over Brent Coon's attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]

• US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
• Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
• KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown's pursuit of Lockyer's equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, "KFC to tell customers of chemical in potatoes", LA Times Apr. 25).
• McDonald's sued over hot coffee. Again. One of the allegations is that McDonald's failed to secure the lid, which is a legitimate negligence suit, but there's also a bogus "failure to warn me that coffee is hot" count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]

Pajamas Media's Martin Solomon reports on the Islamic Society of Boston's extensive use of litigation to silence critics, ranging from moderate Muslims to a local interfaith group to local reporters and newspapers, who question whether the organization has ties to Islamic radicals. The David Project has a set of links to court documents. Daniel Pipes has also been covering the matter. ISB's attorney is Howard Cooper, who recently won affirmance of a $2.1 million verdict against the Boston Herald, which had criticized a local judge (May 11). See also Jeff Jacoby, "New questions for the ISB", Boston Globe, Apr. 25. Earlier on Overlawyered: Aug. 27 (ISB subpoenas talk show); May 19; Jan. 5, 2006.

Environmental groups keep suing the United States Navy (See: Oct. 2004, Jul. 2006, and Mar. 2006) over its use of sonar, on the speculative theory that sonar hurts whales. Now they're at it again, filing a lawsuit yesterday in federal court in Hawaii. This time it's Earthjustice, suing on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and the Surfrider Foundation, trying to stop naval exercises off the coast of Hawaii. (PDF copy of complaint.)

Regardless of what one thinks of the merits of using sonar or privileging whales over national security, it's absurd that federal judges -- experts, we think, neither in marine biology nor submarine warfare -- should be the ones deciding these policy questions. But it's more absurd that these issues get to be relitigated over and over and over again. Of course environmental groups are the ones filing these repeated lawsuits, but in the big picture, the blame for this situation should be laid at the feet of Congress, which passes vague environmental laws which create broad standing allowing infinite numbers of random bystanders to sue without having to suffer tangible personal harm. ("I like looking at whales.") And, perhaps worse than the vagueness of the laws is the fact that so many of these laws simply exist to create a zillion procedural hoops to jump through. (To provide an idea of these hoops, this complaint alone alleges the following causes of action:

• Failure to provide public notice and an opportunity to comment in violation of Administrative Procedure Act and National Environmental Policy Act
• Failure to prepare an Environmental Impact Statement in violation of Administrative Procedure Act and National Environmental Policy Act
• Issuance of an inadequate Environmental Assessment in violation of Administrative Procedure Act and National Environmental Policy Act
• Issuance of an inadequate Biological Opinion in violation of Administrative Procedure Act and Endangered Species Act
• Failure to consult with the Hawaii State Coastal Zone Management Program For Undersea Warfare Exercises in violation of Administrative Procedure Act and Coastal Zone Management Act

Have your eyes glazed over yet?)

Whatever the appropriate policy balance to be struck here, it should probably be determined by Congress, and it should definitely be decided once and for all, rather than each and every time a submariner sneezes. If the Navy is to be required to use specific types of sonar or other equipment, or is to be denied permission to operate in certain locales, or whatever, then there ought to be a statute or regulation which spells these rules out explicitly, rather than allowing activist groups to rush to court on a weekly basis to get a judge to decide.

Updating a few of the earlier stories covered around here:

• Maybe it's not so gay after all: Rebekah Rice, the California high school student who sued her school after they disciplined her for saying "That's so gay," has lost her lawsuit.

  "All of us have probably felt at some time that we were unfairly punished by a callous teacher, or picked on and teased by boorish and uncaring bullies. Unfortunately, this is part of what teenagers endure in becoming adults," the judge wrote in a 20-page ruling. "The law, with all its majesty and might, is simply too crude and imprecise an instrument to satisfactorily soothe deeply hurt feelings."

  Moreover, the judge picked up on the same irony we noted when we first covered the story:

  "If the Rice family had not told everyone that Rebekah had been given a referral for saying 'That's so gay' then no one else would have know it either, and she would not have been referred to as the 'That's so gay girl,'" the judge wrote.

  (Update to the update: Matthew Heller has the opinion.)

• Contrary to what we had speculated, it appears that Pants Judge Roy Pearson still has a job and may continue to do so. According to an unnamed D.C. official, and exemplifying the attitude with which the tort reform movement is fighting, "I don't think it's appropriate not to reappoint someone just because they file a lawsuit. You can't retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights." (No, but you can retaliate against someone for filing a frivolous lawsuit.) Meanwhile, as a face-saving publicity stunt, the American Trial Lawyers Association filed an ethics complaint against Pearson; really, Pearson isn't doing anything that ATLA doesn't endorse in other situations.

• Remember Ted and Mary Roberts, the husband-and-wife team of San Antonio lawyers who hatched a blackmail scheme in which the wife had sex with married men and the husband threatened to sue them unless they paid him to keep quiet? (Ted's been convicted; Mary is awaiting trial.) The bankruptcy trustee, acting on behalf of their estate, had sued the local San Antonio Express News for violating their privacy by reporting on their scheme; Howard Bashman reports that the Fifth Circuit affirmed dismissal of the lawsuit by a lower court. So the newspaper won a complete legal victory -- but truthfully reporting on a criminal scheme by prominent lawyers nevertheless must have cost them six figures' worth of legal expenses.

• O.J. Simpson will not be suing the Kentucky steakhouse that wouldn't serve him. His lawyer -- the one who rushed to announce that O.J. was a victim and that the steakhouse "screwed with the wrong guy" -- now tries to blame the owner for "using the episode for publicity." (Originally, May 10.)

• The bogus Equal vs. Splenda unfair competition lawsuit (Mar. 8) over Splenda's "Made From Sugar, So It Tastes Like Sugar" slogan settled on undisclosed terms, moments before a jury announced its verdict. Although we don't know the terms of the settlement, it shouldn't be too hard to figure out the non-monetary part: just check whether Splenda changes its advertising.

An executive order signed today bars United States government agencies from hiring contingent-fee attorneys or expert witnesses to litigate on behalf of the government. The Institute for Legal Reform applauded the decision, and called for state governments to follow suit. A California court recently struck down such arrangements in that state as an inherently unethical conflict of interest. See County of Santa Clara v. Atlantic Richfield Company, No. 1-00-CV-788657, slip op. at 2 (Cal. Super. Ct. Apr. 4, 2007) (via the increasingly indispensable Beck and Herrmann). (Cross-posted at Point of Law.)

Professor Bainbridge has some thoughts on a policy apparently pursued by some landlords (at least when the law permits them to do so) (May 15).

In 1995 the Taubman Centers announced a plan to redevelop a defunct copper wire factory site in Syosset, just off the Long Island Expressway, into a high-end mall. Twelve years of grueling legal battles later, Taubman has spent $100 million, won most of the rounds in court, and signed up Neiman Marcus and other elite retailers, yet an end is nowhere in sight. And it happens that the civic coalition that has been so successful at running up Taubman's costs has gotten some help from Simon Property Group, the large mall developer that currently dominates the local market and doesn't welcome competition. On TimesDelete, unfortunately (Peter Applebome, "A Mall Plan, a Call to Arms, a Plot of Land Still Empty", New York Times, May 13). Earlier coverage, not behind screen: Dawn Wotapka Hardesty, "For Taubman, no choice but to fight", Long Island Business News, Dec. 29.

Robert Baswell, 44 and homeless, went to sleep in a trash bin, which was a really bad idea: garbage collectors emptied the container into their truck, and Baswell

...was repeatedly crushed each time the truck compacted a new load of trash, breaking his legs and ribs.

The cringe factor on that is pretty high.

But now there’s another reason to cringe.

We got a press release from this man’s new lawyers -- Steinger, Iscoe & Greene in West Palm Beach. The press release simply says that they are representing him, presumably for a future lawsuit.

(Rochelle E.B. Gilken, Behind the Yellow Tape (Palm Beach Post blog), May 10; "Man Crushed By Trash Truck Shares Story", KFOX, May 15; law firm's press release).

We've reported before (here and here) on the campaign by activists to establish a cause of action arising from "workplace bullying". Efforts to get the courts to create such a right have not fared well, but the National Law Journal reports growing interest around the state legislatures:

Connecticut, for example, wants to outlaw "threatening, intimidating or humiliating" conduct by a boss or co-worker and would ban repeated insults and epithets. The proposal doesn't specify a penalty, but would only give workers the grounds to sue.

New York's anti-bullying legislation targets malicious conduct by supervisors that hurts employees either physically or psychologically. Mental health harm could include humiliation, stress, loss of sleep, severe anxiety and depression. The bill also would punish retaliation of the complainant or anyone who helps the complainant.

As management lawyers warn, enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing "superpersonnel departments" dispensing financial balm for injured feelings in the workplace. (cross-posted from Point of Law).

Earlier: May 11, May 8, Apr. 5, Apr. 4, etc.

• Barbara Bonar gets supporting testimony in her claims against Stan Chesley, but loses bench trial in case she brought over questionable settlement over Catholic church sex abuse. Bonar, the next president of the Kentucky Bar, will appeal. In the meantime, she faces trumped up ethics charges for representing class member opt-out settlements. (Andrew Wolfson, "Covington lawyer loses fee dispute case", Louisville Courier-Journal, May 12).
• Angela Ford, who is bringing the lawsuit on behalf of Kentucky fen-phen victims ripped off by their attorneys against their co-counsel, Stan Chesley, is now also facing what seems to me retaliatory political pressure; a Hamilton County, Ohio, judge, apparently unaware of deposition commissions, is complaining that she subpoenaed an Ohio witness without being licensed to practice law in that state. For some reason, a Kentucky judge, Stanley Billingsley, is testifying on behalf of Chesley. An American Home Products witness contradicted defendants' claims that they "set aside" some settlement money for future Kentucky claimants (who, under the U.S. Supreme Court Amchem precedent, could not be bound by the settlement). And the parties are in mediation tomorrow and Thursday, which, judging by Chesley's attorney's complaints about press coverage, implies a confidential settlement is near. Next court hearing is May 31. (Shelly Whitehead, "Fen-phen suit heads to mediation", Cincinnati Post, Apr. 24; Beth Musgrave and Jim Warren, "Lawyers meet Wednesday to try to reach deal on fen-phen millions", Lexington Herald-Leader, May 14).
• Angela Ford herself has a website, which is not surprising, but it does include a remarkable resource of publicly-available court documents related to the Abbott v. Chesley case.

Shi ("Carl") Huang, a senior at Theodore Roosevelt High School in Kent, Ohio, and a Chinese national in the country on a student visa, hacked his teacher's computer using a guessed password and obtained test questions. He was caught and given an "F" for the course, having been a straight-A student previously; the school also suspended Huang and is pressing criminal charges which could affect his ability to stay in the country. Now Huang and his parents are suing the teacher, James Zagray, the Kent board of education, and three school administrators, saying the boy was entrapped into the misconduct, that the teacher did not reach out sufficiently as he struggled with the course, and that the district mishandled the disciplinary process. Demands include monetary damages as well as changes to Huang's grade and other records. (Marci Piltz, "Kent student sues over suspension", Ravenna Record-Courier, May 3; Vic Gideon, "Honor student might have to leave country after getting caught cheating", WKYC, May 2).

"Dog breeders have warned that some of Britain's best-loved breeds including dachshunds, bulldogs and basset hounds could disappear because of new and potentially far-reaching government animal-welfare measures." Animal welfare groups have campaigned against the breeding of pedigreed animals, saying the pursuit of distinctive characteristics such as head size in bulldogs often comes at the expense of the animal's health. A controversial Europe-wide treaty on animal breeding would translate the idea into law. "Dog breeders fear that the treaty's terms are so broad that it would effectively forbid the breeding of distinctive types of dog because their defining characteristics could be seen as risking their welfare. According to the Scottish Kennel Club, ratifying the treaty would mean that anywhere between 30 and 40 breeds would effectively be outlawed." The director of Edinburgh-based Advocates for Animals calls the argument "scaremongering nonsense". (James Kirkup, "Euro rules 'could outlaw 40 dog breeds'", The Scotsman, Apr. 30).

Uh-oh: "A Contra Costa County school district's use of wood chips in play boxes makes it harder for boys and girls in wheelchairs to get to swings and slides, a violation of the disabled children's rights, a federal judge has ruled." Rubberized mats, the main alternative, are eight times as expensive, according to a lawyer for the district in Northern California. According to playground designer Susan Goltsman, "wood chips are more yielding and may cushion falls better", aside from which employing a variety of ground materials is helpful in keeping playgrounds interesting to kids. (Bob Egelko, "Wood chips ruled unfriendly to disabled kids", San Francisco Chronicle, May 5).

That's what three clients are alleging in court papers about Bill Lerach's $10 million settlement in 2004 of a securities case called Yusty v. Tut Systems. Carlos Horacio Yusty, Andres Jaramillo, and Rodrigo Jaramillo say that by the time they got wind of the settlement two years later, all the proceeds had been distributed and Lerach and partner Darren Robbins of Lerach Coughlin had cashed a $2.5 million fee. The trio's lawyer, Bruce Murphy of Vero Beach, Fla., also says he was done out of a referral fee. The class-action sultan's (and Robbins's) response to the charges isn't known yet. Roger Parloff of Fortune has a full report (Legal Pad, May 13).

Eugene Volokh points out that you can't be found liable for defaming a city, notwithstanding a nastygram sent by the Pomona, Calif. city attorney to the Foothill Cities weblog (May 11). The weblog has pulled down the posts in question, which reported on rumors involving the city manager and others in the city's employ: "We're going to let Goliath win this one". (May 11).

George Will on the hate crimes bill moving through Congress ("A Bustling Hate-Crime Industry", Washington Post, May 13). More: Jacob Sullum, "Looking for Hate in All the Wrong Places", syndicated/Reason, May 9.

A couple of weeks ago, we reported on two teenagers who claimed to be traumatized by seeing a gay sex book at the library. But how traumatized could they be? After all, they sued for just $20,000. So, logically, they must have only been 1/20th as distressed by the thought of gay people as Jessica Turner of Chicago:

A suit was filed on behalf of a 12-year-old girl who claims she suffered psychological distress when a teacher showed in class the gay-themed movie "Brokeback Mountain."

The girl, Jessica Turner, and her grandparents Kenneth and LaVerne Richardson, are seeking more than $400,000 in damages under the suit filed Friday against the Chicago Board of Education and others.

[...]

The plaintiffs accuse Diaz, Buford and the Chicago Board of Education of negligence, false imprisonment and intentional infliction of emotional distress.

The suit claims Jessica continues to suffer from emotional distress caused by watching the film and is currently undergoing psychological treatment and counseling.

You know, as I recall, William Faulkner had that effect on me. I wonder what the statute of limitations is on psychological-assault-by-bad-literature.

We often talk about lawyers manufacturing clients in the class action context, but how about creating an entirely new class of clients? Some European activists are embarking on that path, taking their case through the European courts:

In some ways, Hiasl is like any other Viennese: He indulges a weakness for pastry, likes to paint and enjoys chilling out watching TV. But he doesn’t care for coffee, and he isn’t actually a person — at least not yet.

In a case that could set a global legal precedent for granting basic rights to apes, animal rights advocates are seeking to get the 26-year-old male chimpanzee legally declared a “person.”

Hiasl’s supporters argue he needs that status to become a legal entity that can receive donations and get a guardian to look out for his interests.

“Our main argument is that Hiasl is a person and has basic legal rights,” said Eberhart Theuer, a lawyer leading the challenge on behalf of the Association Against Animal Factories, a Vienna animal rights group.

So far, they haven't had any luck, but they plan to appeal to higher courts, including "the European Court of Human [sic] Rights, if necessary." The article notes that not all animal rights activists are supportive, including one "who worries that chimpanzees could gain broader rights, such as copyright protections on their photographs."

But, surprisingly, Americans may already be ahead of them. It's not unusual for a family fighting over an estate to fight over the family pets as vehemently as they fight over any other piece of property. But what is unusual is giving the pet a say in the matter, as in a Tennessee case decided this week:

A dogfight over Alex the Golden Retriever was resolved by agreement Monday in Probate Court.

[...]

The agreement, which was approved by Judge Karen Webster, adopted the recommendations of attorney Paul Royal, who was appointed by the court as guardian ad litem to represent Alex's interests.

Guardians ad litem commonly are appointed to represent minor children or incapacitated adults in court proceedings, but legal observers cannot recall another local case in which one was appointed to represent a dog.

See? Lawyers will never exhaust the supply of clients, because we can always creatively come up with new sources. (And if we run out of pets, we can always adopt the idea first proposed by environmentalists in the 1970s, to allow lawyers to represent trees.)

Prominent Cincinnati attorney Stan Chesley said he wanted to file the Diocese of Covington priest-abuse case in Boone County because "we have a real friendly judge there," a lawyer testified this week.

"He winked at me" and said "we need to file this in Boone County," testified Covington lawyer Barbara Bonar, who is suing Chesley in a dispute over attorneys fees in the $84.5 million case.

"He said we already have hired a trial consultant, and he is real friendly with the judge," Bonar said, describing a conversation she claimed to have had with Chesley in January 2003. "And he winked at me again."

Chesley denies the allegations, but the fact remains that the Boone Circuit judge, Joseph Bamberger, of Kentucky fen-phen scandal fame, made an unprecedented ruling certifying a class action over priest abuse that forced the diocese into a $84.5 million settlement given that the church could not hope to defend itself against anonymous unnamed class members.

Bonar, who was briefly co-counsel for the class in the priest-abuse case, testified that Chesley's partner Robert Steinberg told her in August 2003 that the Chesley firm had to turn down an early $3 million settlement offer from the diocese because it already had paid $400,000 in expenses to Modlin as a fee "to get the class certified."

The diocese had sought Bamberger's recusal. Modlin was also hired as a $2 million "trial consultant" in the fen-phen case, and went on to buy a house in Florida with Judge Bamberger. Chesley denies paying Modlin $400,000, and Bonar has her own motivation to fib, as she's suing for a share of the Chesley fees from the class action, and claims she left the case only because of her fear of being involved in a fraud on the court. Bonar has already earned $2 million in fees out of the $4.7 million she settled for in individual cases outside the class action. Somewhere in here, a crime has been committed, whether it be bribery or perjury, but there's work for a grand jury to be done. (Andrew Wolfson, "Lawyers clash in dispute over fees", Louisville Courier-Journal, May 10; see also Jeanne Houck, "Claims tangle diocese lawsuit", Kentucky Post, Nov. 26, 2003).

Update: the Kentucky Bar Association is investigating. (Paul A. Long, "Bar: Probe attorneys' conduct", Cincinnati Post, May 10.)

The Jersey Jihad arrests, following a report to authorities by an alert Circuit City employee, have reignited talk of protecting airline passengers from being sued for reporting suspicious behavior. Michelle Malkin has the slogan on a button (May 9; see also Audrey Hudson, "Republicans lobby Pelosi to protect 'John Does'", Washington Times, May 2; NRO "The Corner"). Earlier: Mar. 15, Mar. 22, Mar. 29, Apr. 19. Update: Jul. 20 (Hill conferees strip John Doe protection from bill).

"Massachusetts' highest court on Monday upheld a $2 million verdict against the Boston Herald won by a state Superior Court judge who said the newspaper libelously depicted him as soft on crime and insensitive to the suffering of a 14-year-old rape victim." Better be careful what you say about Judge Ernest Murphy in future. (AP coverage; Romenesko first, second posts; Dan Kennedy, Media Nation; Childs). Earlier coverage: Dec. 8 and Dec. 23, 2005.

Back in 2003, we noted the tale of police nabbing a suspected murderer by getting a DNA sample by tricking him into licking an envelope for a phony class-action solicitation. State of Washington v. John Nicholas Athan, Howard Bashman documents (via Kerr @ Volokh), has upheld the resulting conviction for murder.

A Chicago alderman complained that the racy billboard had been put up without a proper permit and a building inspector took it down, but not before it yielded a "dramatic" increase in calls to the law firm that placed it. (NBC San Diego, May 9; see May 8).

We've pointed out doctor-bloggers who have provided first person accounts of being sued for malpractice, but the last doctor on the list, the pseudonymously-named "Flea," is taking it one step further: he's blogging about his own trial as it happens. Today's post is "Flea on Trial - Day One: Jury Selection." You can follow the whole series here.

Meanwhile, New York Personal Injury Lawyer Eric Turkewitz comments, from a trial lawyer's perspective, on some of the dangers of a doctor blogging about a case in near-real time. Our favorite tidbit is this:

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff's counsel finds out about the blog, should it be used at trial? A lawyer's gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff's verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff's verdict.

Well, sure -- it is about the money, after all.

Jeff Ruby was appalled when double-murderer OJ Simpson and a party of twelve sat down at his steakhouse the eve of the Kentucky Derby when a customer expressed giddiness about seeing the infamous celebrity. So Ruby announced to Simpson that he wasn't welcome in the restaurant, and Simpson left, and Ruby got a standing ovation from the other customers for putting principle ahead of profits. Now Simpson's attorney, Yale Galanter, is threatening to sue Ruby for racial discrimination; the Reverend Louis Coleman of the "Justice Resource Center" is picketing Ruby's.

Ruby's has a plausible defense that their action wasn't based on race: a famous black athlete who didn't murder two people, Michael Jordan, walked in five minutes after Simpson left and got a table. (Angie Fenton, "Get Buzzed: Jeff Ruby turned away O.J. Simpson", Louisville Courier-Journal, May 8; Angie Fenton, "O.J. went to neighboring restaurant after Ruby's stop", Louisville Courier-Journal, May 9; Beth Campbell, AP/WaPo, May 9).

Update: Ruby explicitly denies the racial discrimination argument. (Courier-Journal, May 10).

The Chicago law firm of Edelman, Combs, Latturner & Goodwin, LLC has some wonderful news for you:

We are looking for electronically generated credit / debit card receipts which show either (a) the card expiration date or (b) any digits of the credit/ debit card number other than the last five.

In order to protect consumers against identity theft, an amendment to the Fair Credit Reporting Act with a final effective date of December 4, 2006 requires merchants who accept credit/ debit cards and issue electronic receipts to program their machines to not show either the expiration date or more than the last 5 digits of the credit/ debit card number. The expiration date is important because a thief can use it together with the last four or five digits of the number to reconstruct the entire card number.

It is a violation to show either the expiration date or more than the last 5 digits of the card number. (We have seen some receipts where 4 or 5 other digits are shown, and that is a violation.) It is not necessary that any identity theft have actually occurred. Damages for a willful violation are $100 to $1,000 per receipt. The class representative may be able to obtain some additional compensation.

We have a number of pending cases alleging this violation and are interested in other merchants who are violating the law.

The burgeoning volume of entrepreneurial litigation over insufficiently blinded credit slips is the subject of a recent Wall Street Journal article: see Robin Sidel, "Retailers Whose Slips Show Too Much Attract Lawsuits", Apr. 28, reprinted Cattle Network, Apr. 28. For more about name partner Daniel Edelman, see Nov. 15, 1999 (infamous BancBoston settlement), Feb. 7, 2000, and Dec. 11, 2006. The Edelman firm's website has a long listing of notable case involvements which boasts of its role in mortgage escrow class actions, but does not mention BancBoston.

Running as a socially conservative Democrat, John Arthur Eaves, Jr. says he's put $1.3 million of his own money into his campaign for governor, a sum he may hardly miss given his earnings as a prominent plaintiff's lawyer (AP/Jackson Clarion-Ledger, May 9).

New burdens are being heaped on them by state legislators who appear intent on protecting the interests of the original music providers:

In Florida, the new legislation requires all stores buying second-hand merchandise for resale to apply for a permit and file security in the form of a $10,000 bond with the Department of Agriculture and Consumer Services. In addition, stores would be required to thumb-print customers selling used CDs, and acquire a copy of state-issued identity documents such as a driver's license. Furthermore, stores could issue only store credit -- not cash -- in exchange for traded CDs, and would be required to hold discs for 30 days before reselling them.

(Ed Christman, "New laws create second-hand woes for CD retailers", Reuters/Billboard, May 4; Ars Technica, May 7). According to HardOCP, used game CDs are affected by the rules as well. (May 8).

"A man who fell from a tree after an aborted suicide bid is suing a Sydney health service, claiming not enough was done to treat his depression ahead of the accident." Timothy Walker decided to kill himself 11 days after his discharge from a psychiatric facility, but instead was left a quadriplegic. He "is suing the Wentworth Area Health Service for negligence, claiming not enough was done to care for him" and that he should have been given medication. (Lisa Allan and Kim Arlington, "Man sues over aborted suicide tree fall", AAP/The Australian, Apr. 16)(via LegalJuice). Update Jun. 6: judge rejects case.

Apparently kickball isn't just for elementary school students anymore: the website DCist reports that a lawsuit filed last February by the World Adult Kickball Association ("WAKA") against rival adult kickball league (I'm having trouble reporting this without snickering) DC Kickball is still kicking around in the federal courts a year later.

The original complaint doesn't appear to be online, but the Washington City Paper provided more details last year, including:

The complaint accuses DCKickball founder Carter Rabasa of copyright infringement for unauthorized use of WAKA’s co-ed kickball rules, including “the clearly unique requirement that there be 4 men AND 4 women at a minimum to play” and for mandating that “players must be at least 21 years old.” No other specific rules or intellectual-property thefts are mentioned, but the suit points out that David Fischer, a volunteer director for DCKickball, was previously a player for the WAKA team “Scoregasm.”

The suit also accuses Rabasa of defamation, based on his calling WAKA “the Microsoft of kickball” in a 2005 Washington City Paper story (“Kickball Wars,” Cheap Seats, 5/13) and his additional comments in a subsequent Wall Street Journal article. Those comments, the suit alleges, incited a kickballer to post “WAKA bites it” on the DCKickball Web site.

To the extent this represents the entire complaint (there also seems to be an unspecified trademark claim as well), it appears utterly meritless. You can't copyright the rules of a game (although you can copyright the specific wording used), and in any case, neither of the rules cited sound particularly original. And "the Microsoft of kickball" may be insulting to a Macintosh fan, but is not defamatory. These hurdles don't seem to faze WAKA, though; the company is suing its much smaller competitor for at least $350,000.

But WAKA is apparently very aggressive; it has reportedly sent out cease-and-desist letters to at least two other competitors, according to the City Paper article, accusing them of violating its intellectual property, trade secrets (!), and a non-compete clause (for an unpaid volunteer).

And since "turn the other cheek" is not one of the canons of legal ethics, DC Kickball has countersued for violations of federal and DC antitrust law.

Seriously, adults play kickball? Seriously?

• Whoops! Insurer's lawyer backtracks and scrambles for cover after saying some Miami/Dade judges "are being paid off" [Daily Business Review; possibly related, scroll to mention of Miami near end]


• Climate's different up there: Google and Wikipedia sued for libel in Canada over user-generated content [Rob Hyndman]


• Lawyers implicated in Ky. fen-phen scandal are owners of Curlin, horse that placed third in Kentucky Derby [Courier-Journal, Sun-Times, Sports Network, WSJ law blog]


• "As a lawyer, I hear stories about lawsuit abuse all the time," but Judge Pearson's pants suit takes the cake [Nasty Brutish & Short; also lively discussion at Digg]


• Ramps of gold: serial ADA-suit filers George Louie, David Gunther and others launch wave of sidewalk suits against Northern California towns [Contra Costa Times]


• $250 fine for releasing a balloon into the air in New Hampshire? Criminalizing nearly everything [National Law Journal; also Ayn Rand]


• Helpful, if scary: "12 Important U.S. Laws Every Blogger Needs To Know" [Aviva Directory]


• U.K. lawyers ordered to pay back tens of millions of pounds in excessive fees earned for representing sick miners [Times Online Apr. 16, Apr. 25, Apr. 10; Telegraph]


• Did Rosie O'Donnell come out for loser-pays on ABC's "The View"? Someone please get a transcript [Bill Boushka]


• Japan doesn't furnish us with much material, but here's one about magicians suing TV broadcasters for revealing secrets behind coin tricks [Above the Law]


• Sensitivity vs. sensitivity: female drummers allowed to sue over their (culturally authentic) exclusion from ritual drumming at Native American powwow [five years ago on Overlawyered]

"Life's short. Get a divorce," proclaims the Chicago billboard of the law firm of Fetman, Garland & Associates. Flanking the message: big pictures of a buxom temptress in black lace bra and, on the other side, a half-clad muscleman. Reaction has been strong:

"It's grotesque,'' said John Ducanto, past president of the American Academy of Matrimonial Lawyers. "It's totally undignified and offensive."

"It trivializes divorce and I think it's absolutely disgusting," Rick Tivers, a clinical social worker at the Center for Divorce Recovery in Chicago, told ABC News. ...

One of the genuine lions of the American divorce courts -- New York's Raoul Felder -- said the ad was a new low for the profession.

"This has to be the Academy Award of bad taste,'' Felder told ABC News. ...

[The billboard] peers down into an area of Rush Street known as the "Viagra Triangle" for its three, trendy singles bars in an affluent section of Chicago known as the "Gold Coast.''

(Chris Francescani, ABCNews.com, May 7). Update May 10: billboard pulled down after alderman reports it to building inspector as lacking a permit.

John Dvorak says hyperactive lawyering should bear much of the blame (MarketWatch, May 3).

This is still speculative, but Judge Roy Pearson, the judge who is now-infamous for suing his dry cleaners for $65 million for a pair of pants, may be facing some repercussions for his abusive lawsuit. We don't know at this time if it's significant, but his employee biography page at the Washington DC Office of Administrative Hearings now results in the terse message The requested article is no longer published.

Previous Pearson coverage: Apr. 26, May 1, May 4.

(Hat tip: The Conservative Voice.)

Update: And his name is not listed in the OAH Directory of judges.

How the mighty have fallen. Once able to harass the president of the United States, professional gadfly Larry Klayman -- former head of Judicial Watch -- is now reduced to filing lawsuits over zoning issues. The town of Pompano Beach approved plans by the Islamic Center of South Florida to build a mosque; at least one resident of the neighborhood disapproved, and hired Klayman:

The lawsuit, filed Tuesday, claims the leader of the mosque, Imam Hassan Sabri, has repeatedly been associated with others who are tied to terrorist groups including Hamas, al-Qaida and the Palestinian Islamic Jihad.

The connections outlined in the filing appear loose and there is no accusation of direct wrongdoing.

Having reviewed the complaint (PDF), it appears to range from meritless to frivolous; this about sums up Klayman's argument:

Larry Klayman, the lawyer for Wright, said the filing does not amount to an anti-Muslim action but maintained that the mosque sacrificed public safety.

"The mosque is radical, the imam is radical," Klayman said. "We believe they will go out and recruit people in the African-American community to do their bidding."

I may not be a fan of "radical" Muslims, but as you can imagine, a church being "radical" and "recruiting people" are protected activities under the First Amendment. And while Klayman failed to name the town that approved the allegedly-suspect rezoning as a party in the case, he sued the completely unrelated Council on American-Islamic Relations for some inexplicable reason. (I suspect the phrase "cheap publicity stunt" may be the answer.)

By the way, one of these things is not like the others:

Klayman also has brought cases against Dick Cheney, Osama bin Laden, Fidel Castro and the Teamsters, as well as his own mother.

(Previous coverage of Klayman: Apr. 2002, Jul. 2005, Apr. 2006)

Rather than even try to summarize the case, we'll let Law.com do it for us: "A New York judge has limited a public-access TV personality's use of small claims courts following her repeated abuse of the system. In dismissing her claim that a Cablevision employee 'poisoned' her sponsors' minds, the judge noted that the woman, who goes by the name Glendora, submitted 360 handwritten pages of documentation, including 'multiple copies of a 60-year-old photo of the plaintiff with Bob Hope ... [and] commentary about the impressive geographic expanse of the City of Yonkers.'" (Mark Fass, "Old Photos of Bob Hope Fail to Carry the Day for Litigious TV Personality", New York Law Journal, May 3).

P.S. Glendora's website is here (plays video)(hat tip Gunner of No Quarters Blog, who suggests checking out show # 4260 for more on the hostess's style in suit-filing).

Couple build mansion next door to Altamont Speedway, are upset by noise and rowdiness spillovers, head for court citing environmental concerns (Phillip Matier and Andrew Ross, "Racetrack, neighbor in a heated fight", Sept. 26, 2006; Jalopnik, Apr. 25).

Do us a favor and fill it out now. It won't take long, it gives us clues about our readership, and it helps us (and other blogs) demonstrate to advertisers the value of reaching the blog audience.

Great Britain continues to grapple with the repercussions of its decision to join the U.S. in permitting contingent-fee legal representation:

Lawyers who encourage parents and pupils to make speculative allegations of abuse against teachers in the hope of winning financial compensation risk are destroying the reputation of thousands of teachers, a teaching union has said.

The National Association of Head Teachers (NAHT) said that lawyers working on a “no win, no fee” basis were fuelling a rise in malicious allegations against teachers, made in the knowledge that local authorities would often pay complainants without even investigating their allegations.

(Alexandra Frean, Times Online, May 5).

According to an Apr. 25 announcement, "Internet Archive, a library of historical Web site content, and Suzanne Shell, the author and owner of the Web site www.profane-justice.org, jointly announced today the settlement of their lawsuit, which stemmed from the archiving of Ms. Shell’s Web site in Internet Archive’s Wayback Machine. ... The Internet Archive said, 'Internet Archive has no interest in including materials in the Wayback Machine of persons who do not wish to have their Web content archived. We recognize that Ms. Shell has a valid and enforceable copyright in her Web site and we regret that the inclusion of her Web site in the Wayback Machine resulted in this litigation. We are happy to have this case behind us.'" The Wayback Machine allows interested persons to go back to examine what particular web pages looked like at earlier dates. Jason Lee Miller has more at WebProNews (Apr. 25) as does John Ottaviani at Technology and Marketing Law Blog (Mar. 14 and May 1), both focusing on Shell's theory that visiting spiders are capable of creating contractual relations. We covered a case raising some of the same issues on Jul. 13, 2005.

In today's Washington Post:

John Wesley Hall Jr., a vice president of the National Association of Criminal Defense Attorneys and author of the standard text on defense ethics, calls [Sibley's tactics in the Palfrey case] "spiteful" and "over the line," and says it "doesn't serve any purpose but to harass and embarrass people."

Earlier: Mar. 27. The ABC News report on Sibley and Palfrey airs tonight.

This week, Roy Pearson, the Judge With the Missing Pants, has replaced Duke Lacrosse prosecutor Mike Nifong as the symbol of lawyers run amok in the United States. And after hearing the story of Pearson's lawsuit, approximately 65 million people -- one for every dollar Pearson is demanding -- have asked me in exasperation what it takes for a lawyer to get disciplined in this country. Well, perhaps one reason it's so difficult to discipline an attorney can be illustrated by a case handed down on Thursday in the Ninth Circuit, involving an attorney named Richard Canatella. Mr. Canatella has a rather... spotty disciplinary history. As described by the California State Bar:

Canatella stipulated to filing numerous frivolous actions in courts in San Mateo, San Francisco, and Santa Clara county courts, as well as in the California Court of Appeal and federal district and appeals courts.

[...]

Canatella’s involvement in nine other matters also was the subject of discipline.

Sanctions were ordered against him or his clients 37 times. Courts repeatedly found him responsible for frivolous, meritless and vexatious actions. Sanctions totalled more than $18,000 in one matter, and the opposing parties were granted all fees and costs in another.

In one case, a federal judge said, “This complaint is a paradigm for ‘frivolous.’” Wrote another federal jurist: “Plaintiff’s repeated attempt to challenge the sanctions and judgments . . . in the face of clear authority that his claim is frivolous evidences his bad faith and wrongful purpose.”

So what did Canatella do? You guessed it: he sued the California Bar and various Bar officials for publishing this disciplinary record online, claiming that it violated his civil rights. The California Appellate Report elaborates:

You'd probably freak out too if that's what they said about you. Mind you, Cantanella offers the following defense (?) of his conduct in his second amended complaint, and alleges that he was not actually sanctioned 37 times, but was instead "investigated" for 47 "purported sanction orders" over a nine year period and was sanctioned on at least 26 "separate" occasions by federal and state courts between 1989 and 1998. Once you hear that, by the way, do you think the judges have a pretty good sense regarding whether Cantanella's a particularly sympathetic figure? Or, perhaps, think -- shockingly -- that a person sanctioned this pervasively is precisely the type of person who would file the present action?

Not surprisingly, Canatella lost his suit. So, showing the same level of sense that got him sanctioned all those times, he appealed. He lost again, in the decision handed down yesterday.

This wasn't the first suit he filed against the Bar, by the way.

So, it's not hard to see why state bar officials may be a little cautious in disciplining attorneys.

We often discuss regulation-via-litigation, but usually there's at least a little bit of metaphor in that phrase. But apparently some people might be taking it entirely too literally. Eugene Volokh points us to this story in the Philadelphia Daily News, in which a City Councilman named Darrell Clarke has come up with a new strategy to pass gun-control laws, despite the fact that the state legislature won't allow him to do so:

What's different is that he says Council also is preparing to file a legal complaint related to the Legislature's inaction.

[...]

Asked how Council can move forward on the bills without a state enabling law, Clarke said, "We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case."

Indeed, why bother with state legislatures at all? Just let lawyers decide what laws would be "reasonable," and then get courts to pass those laws.

(Think of all the time and money we could save by abolishing elections.)

Just what we need: more causes of action. If you've ever wondered why this country is overlawyered -- besides greed and lack of personal responsibility, I mean -- you might want to look to our law schools, where law professors with too much time on their hands spend some of it thinking of new ideas for increasing litigation. The latest example, from Fortune.com's The Browser:

The mere act of forwarding an email or posting an exchange to a website is grounds for legal action, according to University of Arkansas law professor Ned Snow. In a paper to be published in the Kansas Law Review this summer, Snow contends that one of the most common acts of the digital age is a violation of privacy and warns that our courts are running headlong into this issue.

But don't worry; Snow's only trying to help:

His paper is a result of that curiosity, and he’s hoping it will serve as a roadmap for the courts in an issue that is bound to come into the spotlight. “Most of the time, when you forward emails, there’s no harm. But when you can show the harm, there’s reason to go to court,” he says. “I’m trying to offer insight to the courts, who will be grappling with this issue.”

And if there's big money to be made somewhere along the way, well, I guess that's just the price we all have to pay.

What DNA testing is telling us about the reliability of our court system -- even the criminal side of it, where "beyond a reasonable doubt" and other procedural protections are supposed to guard against false positives (Virginia Postrel, Apr. 29).

Outrage continues to spread over Roy Pearson, Jr.'s $65 million suit against a Washington, D.C. Korean dry cleaner over a lost pair of suit pants (Apr. 26, May 1). The Washington Post editorially wonders whether Pearson should continue in his position as an administrative law judge given the "serious questions" raised by the case "about his judgment and temperament". ("Kick in the Pants", May 3). Associated Press coverage is circulating worldwide: Lubna Takruri, "Judge sues cleaner for $65M over pants", AP/Kansas City Star, May 3. And Alex Spillius in London's Daily Telegraph ("Judge sues dry cleaners over lost trousers, May 3) notes that Pearson

reached the figure of $67,292,000 as follows: Washington's consumer protection law provides for damages of $1,500 per violation per day. Mr Pearson started multiplying: 12 violations over 1,200 days, times three defendants (the Chungs and their son)....

Mr Pearson has set the Chungs and their lawyers a long list of questions, which includes: "Please identify by name, full address and telephone number, all cleaners known to you on May 1, 2005 in the District of Columbia, the United States and the world that advertise 'SATISFACTION GUARANTEED'," according to the Washington Post.

We'll agree: the posters at the AutoAdmit/Xoxohth board—like commenters on DailyKos, Google and Yahoo! boards, Legal Underground, The Volokh Conspiracy, and even Overlawyered—can be distasteful or obnoxious, and all the more so because in Xoxohth's case because the board is largely unmoderated. Posters have engaged in racial slurs and misogynist remarks; they are notorious for threads where posters evaluate the looks of female attorneys and law students. (Even my girlfriend was the subject of a brief thread.) The site has recently had negative publicity from a Yale Law student who blames a thread there for an inability to find a job and from a Boalt Law student who is facing expulsion because he briefly posted to AutoAdmit and quickly withdrew a poor-taste-joking threat of a Virginia-Tech-copycat at Hastings that resulted in the latter school being shut down for a day.

A Penn Law student who was an administrator on the site resigned in response to some of the shenanigans on the board in March. The WSJ Law Blog is reporting today that that was not enough for his future employer, Boston law firm Edwards Angell Palmer & Dodge, which withdrew its job offer to Anthony Ciolli, who (to my knowledge) is not accused of making any objectionable remarks himself. Now, an employer can reasonably decide that it does not wish to associate with a controversial employee (though the Massachusetts Civil Rights Act imposes on private employment relationships in some circumstances what are in most other states thought of as constitutional speech and freedom-of-association protections applicable only to governmental relationships, which may mean that Ciolli has a cause of action against the firm).

But the decision of Edwards Angell Palmer & Dodge to find Ciolli's association with the AutoAdmit board disqualifying is curious if only because one of the attorneys at the same office of the law firm has been indicted for felony homicide for allegedly killing a man in an auto accident while driving under the influence of sleeping pills. (Three and a half pills were missing from a three-hour-old Ambien prescription, and the attorney allegedly admits "tasting" them.) Now, that attorney is entitled to a presumption of innocence in his criminal trial (he pled not guilty in the summer of 2006, a motion to dismiss was denied later that year, and I cannot find any reference to the current status of his case). But if you ever wanted to know how damning it is in the modern legal community to be associated with a controversial website accused of misogyny, you now have an answer: it's worse than being accused of killing someone.

More blogosphere commentary: Concurring Opinions; Above the Law.

It's gotten the religious group sued, again, by the EEOC. I've gathered some links on the story at Point of Law.

In June 2006 (Overlawyered), a Maryland resident named Arthur Hoyte, in conjunction with the Center for Science in the Public Interest, sued Kentucky Fried Chicken for selling food made with trans fats; he claimed that he didn't realize (despite being a medical doctor!) that fast food might not be the healthiest option for his diet. And this, of course, was KFC's fault.

Yesterday, a federal judge dismissed the lawsuit, pointing out that it didn't even identify any injury suffered by Hoyte, and mocking him for pretending not to realize that fast food might contain trans fats. ("The suggestion is that, by its silence, KFC misled plaintiffs into believing that its products did not contain harmful trans fat. This is a questionable premise at best [...] Especially since, as plaintiff submits, consumers have a 'growing awareness of trans fat and the need to avoid it.' If consumers are increasingly aware of trans fat, where do they expect to find it if not in fast food restaurants?")

This is a big victory for restaurateurs -- as KFC pointed out in its motion, under the logic espoused by Hoyte (who was seeking class action status), effectively everyone who ever ate a meal at a restaurant would have a cause of action against the restaurant, and could claim a minimum of $1500 in damages. (Although Hoyte's claim was about trans fats, the same reasoning would apply to virtually every other ingredient in existence, since any one of them might represent a potential health risk if eaten to excess.)

But it certainly won't end the CSPI's attempt to achieve via litigation what it can't through regulation; Hoyte's claim failed only because D.C. courts have narrowly interpreted the badly-drafted D.C. Consumer Protection Act to require that plaintiffs demonstrate an injury before suing, and because he wasn't creative enough in drafting his complaint to allege the right kind of injuries. This suit was no more frivolous than the similar suits filed against McDonalds, some of which courts have been extremely tolerant of. (See, e.g. Sep. 2006)

Update: Hans Bader comments over at CEI's Openmarket blog, noting the irony that at one time, CSPI actually used to teach that trans fats were safer than saturated fats.

Fortune is reporting that Don Imus has hired a lawyer and is planning to sue CBS for the 40 million left on his contract. The argument would apparently be that Imus was only doing what CBS hired him to do, and therefore it was a breach of contract to fire him for his statements. He may well have a plausible case.

But Imus has hired one of the nation's premiere First Amendment attorneys, and the two sides are gearing up for a legal showdown that could turn on how language in his contract that encouraged the radio host to be irreverent and engage in character attacks is interpreted, according to one person who has read the contract.

The language, according to this source, was part of a five-year contract that went into effect in 2006 and that paid Imus close to $10 million a year. It stipulates that Imus be given a warning before being fired for doing what he made a career out of - making off-color jokes. The source described it as a "dog has one- bite clause." A lawsuit could be filed within a month, this person predicted.

If he does proceed, it won't be the first Imus-related suit filed since his firing; that honor goes to CBS itself, which sued a Southern California radio station for copyright infringement for rebroadcasting Imus shows after it was pulled from the air. The case settled a week later, with the station agreeing to stop and CBS agreeing not to seek damages.

In July 2002, Israeli Air Force planes bombed a building in Gaza to kill a Hamas leader; fifteen people died. Whatever one thinks about the wisdom of that decision, it's hard to figure out what this fighting between Hamas and Israel has to do with the island of Manhattan. But that didn't stop the misnamed Center for Constitutional Rights from suing, in 2005, Israeli government official Avi Dichter in federal court in New York City,

Sensibly, the judge hearing the case, William Pauley dismissed the suit yesterday, determining that the Arab-Israeli conflict would probably not be solved by trial lawyers. But although this case was decided sensibly, it represents yet another attempt by citizens of foreign countries to conduct foreign policy in American courtrooms.

Pauley noted the U.S. government had argued in court papers that the suit, brought by the Center for Constitutional Rights, threatened to involve the courts in policing armed conflicts across the globe, exceeding the role of the courts and intruding on the executive branch's control over foreign affairs.

If this suit were sustained, it's hard to see what foreign war couldn't be fought by trial lawyers in U.S. courts, given that neither the plaintiffs nor the defendant in this case had any connection to the United States.

ABC News runs an extensive interview with Philip Howard on American litigiousness. "We took a wrong turn in American justice about 40 years ago. [J]udges have been sitting on their hands …. letting people claim anything, and the effect is not better justice, it is worse justice."

That's Southwest Airlines, according to plaintiff's lawyers suing it over a 2005 accident at Chicago's Midway Airport. (Joseph R. McFaul, Sharks in the Water, Jan. 14).

Curious doings in Camden, N.J.:

Nita Lawrence, whose son Shykem was paralyzed in a scrimmage football game between Woodrow Wilson and Eastern Regional high schools on Aug. 25, said Monday she never gave a Michigan lawyer authorization to file paperwork naming both high schools in a potential $10 million lawsuit.

In fact, Lawrence said she fired [Ronald R.] Gilbert in early March after he tried to receive advance payment from Bollinger Insurance, the company that provides coverage for student athletes in the Camden School District.

"We didn't say we were suing nobody," Lawrence said. "All we wanted was the insurance company to pay for my son's medical bills. That's all we wanted.

"We don't want no $10 million. We're living fine. Whatever the insurance company doesn't pay, Medicaid pays. We don't need a lawsuit. Now, we've got all these people against us and it's not fair because it's not true."

A $10 million notice of claim dated Mar. 20 names 18 people, including football coaches, principals and superintendents, as possible defendants. (Chuck Gormley, "Mom: No suit authorized over son's injury", Camden Courier-Post, May 1; "Michigan lawyer confirms he's off Lawrence case", May 2).

Further information on Fenton, Michigan attorney Ronald R. Gilbert can be found here. Gilbert appears to be the guiding spirit behind two seemingly philanthropic outfits, the Foundation for Spinal Cord Injury Prevention, Care & Cure and the Foundation for Aquatic Injury Prevention. Visitors to the two groups' websites rather quickly run into discussions of liability and legal options which would seem helpful, no doubt unintentionally, to attorney Gilbert's client intake efforts.

• Remember those lawsuits over Yankee pitcher Cory Lidle's plane crashing into an apartment building? (Mar. 2, Apr. 4). Well, the NTSB has issued its final report on the plane crash, and came to the shocking conclusion that poor piloting was involved. But, despite the NTSB's expertise, it wasn't able to determine whether Lidle or his instructor, Tyler Stanger, was doing the piloting.

  Does anyone think that the NTSB's findings, or failure to uncover this information, will affect in any way the progress of the lawsuits which depend on the answer? (Does anyone think that it will in any way prevent the litigants from finding hired gun experts to testify as to who was piloting?) It seems unlikely:

  The Lidle and Stanger families are suing the plane's manufacturer, and their lawyer criticized the NTSB's conclusions.

  "It's not surprising, the Safety Board always blames the pilot in an accident," said the lawyer, Todd Macaluso. The families fault the plane's steering mechanism, though the NTSB found no evidence of system, structure or engine malfunction.

• If you choose to flee from police at speeds of up to 90 miles per hour on well-traveled roads, and the police try to stop you, the Supreme Court sensibly says that you can't sue the police for violating your constitutional rights when you get injured as a result. (Previously covered: Feb. 27)

  The Supreme Court vote was 8-1, but what was apparently the decisive evidence was that the police officer had a video of the chase (Realmedia), which the Justices were able to review for themselves. If they had been forced to rely upon the description of events by the various parties, the officer would probably have been forced to go to trial.

• Remember that story of the New York City subway hero who sued his attorney because he claimed that the contract he signed with her to exploit his publicity was unfair? (Overlawyered, Mar. 28) Well, reader Phil Grossman points us to this update:

  The lawyer who's getting sued for allegedly using "undue influence" to sign Subway Superman Wesley Autrey into a bad deal says she's the victim - and now she's suing him.

  Diane Kleiman has filed counterclaims against the selfless hero, charging him with breach of contract. She's also seeking money for her legal fees and "damages to her reputation."

  "They're making me look like a shyster. I'm not a shyster," Kleiman told The Post. "I'm not money hungry. This is not who I am.

  I'm pretty sure that being forced to publicly deny that you're a shyster is a bad thing, reputationwise.

Courtesy of Judicial Reports, a cautionary tale for lawyers: be careful when you accept litigious clients. The law firm of Wallace & Minchenberg wasn't, and it came back to bite them:

Bennett A. Cohen kept getting hurt in elevators — or so he claimed. The lawyers he hired to exact compensation from the culprits responsible for the injuries he allegedly sustained in four elevator mishaps between 1989 and 1992 must have suspected that their litigious client might eventually turn on them, as he did. When the last of the elevator tort claims collapsed, Cohen sued the law firm for malpractice for allegedly mishandling his slam-dunk tort suits.

A lower court in Brooklyn refused to dismiss Cohen's suits, but the Appellate Division said that law firms can't be guilty of malpractice for failing to properly prosecute cases without any merit to begin with.

I'm sure that's of great comfort to the elevator maintenance companies who were originally sued by the law firm on behalf of Cohen.

(Too bad Cohen was representing himself pro se in his lawsuit against Wallace & Minchenberg. Otherwise he could have sued the lawyers who represented him in this lawsuit for failing to win against his former lawyers.)

Two-thirds of lawyers queried in a new survey say they've seen specific instances of bill padding, a figure that hasn't changed much since 1995. On two related questions, the numbers are actually getting worse, as Nathan Koppel notes at the WSJ Law Blog (May 1): "54.6% of the respondents (as compared with 40.3% in 1995) admitted that they had sometimes performed unnecessary tasks just to bump up their billable output", and "the percentage of attorneys who admitted that they had double billed rose from 23% in 1996 to 34.7% in 2007. And only 51.8% regarded the practice as unethical in 2007, as compared with 64.7% in 1995," although most ethical authorities not surprisingly frown on that practice. Ted has some further thoughts at Point of Law; the study data, gathered by Cumberland/Sanford lawprof William Ross, is here (PDF). More: Jun. 24.

That belitting phrase was uttered not by a supervisor, nor yet by a co-worker, but by a private citizen at a hearing where Amy Lee was being flayed by public commenters for her performance as assistant director of San Francisco's Building Inspection Department. Even so, it has now resulted in a settlement in which the city has agreed to fork over $156,000 in damages and attorneys fees to resolve Lee's charges of sexual harassment and pregnancy discrimination. Supervisor Tom Ammiano, not generally known as an enthusiast for employer's rights, nonetheless

cast the lone vote on the board against the settlement [and] called the payout ludicrous.

The "pregnancy brain" remark was out of bounds, Ammiano said. But it was made at a public meeting, where officials take shots all the time, he said.

"You can't control public comment," Ammiano said.

Lee remains on the public payroll. (Phillip Matier and Andrew Ross, "Former chief of Building Inspection gets damages", San Francisco Chronicle, Apr. 30).

We earlier covered Judge Easterbrook's opinion in the Redwood v. Dobson case. On Evan Schaeffer's Illinois Trial Practice Blog I commented:

A censure for instructing a witness not to answer seems strict, considering the practicality that most parties would prefer that result to cutting off the deposition, and one unfortunately cannot be assured of a federal district judge who is as familiar with the current rendition of Rule 30 as Judge Easterbrook is. (Indeed, the district court judge in Redwood erroneously applied Rule 30 according to the appellate opinion.)

If one were to walk the tightrope that Redwood presents us, I would recommend objecting as follows: "We find that question objectionable. I would prefer not to suspend the deposition here to seek a protective order, but Rule 30 offers me no other alternative. Can we agree that you will postpone this question until the end of the deposition, and we'll seek the protective order then?" By doing this, one demonstrates good faith and places the burden on the questioner of choosing to end the deposition early over this question. That's not complete protection by any means: the questioner can stand her ground, and then still seek sanctions for the costs of a second day of deposition if the protective order is denied. It's an elaborate game of chicken, to be sure, and I've been on both sides of intimidating junior attorneys and having senior attorneys try to intimidate me in that game.

Now, in the American Lawyer, Northwestern Professor Steven Lubet stakes a similar position (via Civ Pro Prof Blog):

The Seventh Circuit might have thought the Redwood decision would "defuse . . . the heated feelings" at depositions, but it may well have the reverse effect of making litigation more contentious, potentially turning every deposition into a high-stakes confrontation. Lawyers already play enough chicken, and now they're going to have to learn a new game-truth or dare.

Lubet complains that Redwood leaves attorneys with only the nuclear option of the expense of seeking a protective order; this isn't quite the case, as my February comment above shows. But Lubet is correct that there is a problem in treating the victim the same as the originally misbehaving attorney.

Of course, the problem is less with the Seventh Circuit decision as much as with the very clear instruction of Fed. R. Civ. Proc. 30(d)(1) combined with the unwillingness of courts to enforce sanctions or provide adequate protective orders for over-aggressive discovery. If district courts were doing their jobs, that Seventh Circuit opinion wouldn't look so frightening to practitioners, because attorneys would be behaving in the first place.

(Earlier.) Commenter Becky points us to this Sherman Joyce letter in the Examiner, to which we have added hyperlinks:

Dear Judge Butler and Commissioners Rigsby, Levine and Wilner:

On behalf of the American Tort Reform Association, which works to combat lawsuit abuse, I urge you to carefully reconsider the reappointment of Administrative Law Judge Roy Pearson Jr. to a 10-year term, scheduled to commence in three days on May 2.

As you are almost surely aware by now, thanks to extensive local and national media coverage, Judge Pearson has chosen to exploit the District’s well-intentioned but loosely worded Consumer Protection and Procedures Act in suing a family-owned D.C. dry cleaner for more than $65 million — over a lost pair of suit pants.

Though the pants have long since been found and made available to him, Judge Pearson has stubbornly continued to waste precious Superior Court resources in a clearly misguided effort to extort a hardworking family that provides a service to its community and tax revenue to the District government.

In a letter to the editor in today’s Washington Post, former National Labors Relations Board chief administrative law judge Melvin Welles urged “any bar to which Mr. Pearson belongs to immediately disbar him and the District to remove him from his position as an administrative law judge.”

To those of us who carefully study the litigation industry’s growing abuse of consumer protection laws around the country (see ATRA general counsel Victor Schwartz’s recent article from Executive Counsel magazine, “Consumer Protection Acts Are a Springboard for Lawsuit Abuse,” enclosed) and to everyday D.C. taxpayers who collectively provide Pearson with a considerable salary, his persistence in this lawsuit raises serious question about his capacity to serve the city as a “fair, impartial, effective, and efficient” judge, as required by the Office of Administrative Hearings Establishment Act.

If Pearson goes ahead with his lawsuit, any party who comes before him in future administrative hearings could understandably lack confidence in his judgment and judicial temperament. Furthermore, this case will become fodder for late-night comics, various members of Congress and other assorted critics of D.C. government if this case, scheduled for trial June 11, remains in the headlines.

Judicial temperament is a critical characteristic of an outstanding jurist. Any individual who chooses to pursue a case such as Pearson’s, at a minimum, calls into question his or her’s. As you consider his reappointment, we strongly urge you to examine closely his judicial temperament and decide whether it is sufficient to serve the people of the District of Columbia properly as an administrative law judge.

Pearson has a litigation history; commenter Monica points us to this reported opinion stemming from his divorce.

Update, May 2, from ABC News:

[The Chungs] have spent thousands of dollars defending themselves against Pearson's lawsuit.

"It's not humorous, not funny and nobody would have thought that something like this would have happened,'' Soo Chung told ABC News through an interpreter.

Her husband agreed.

"It's affecting us first of all financially, because of all the lawyers' fees,'' Jin Chung said. "For two years, we've been paying lawyer fees... we've gotten bad credit as well, and secondly, it's been difficult mentally and physically because of the level of stress.''

As we noted Apr. 16, the Arizona State Board of Appraisal has sent a letter to Zillow.com demanding that it cease and desist from offering its free online estimates of property values in the state, on the grounds that Arizona law prohibits the unlicensed offering of real estate appraisals. Eugene Volokh (Apr. 30) believes that as interpreted by the regulatory board, at least, the Arizona statute is probably "constitutionally overbroad". Notes commenter Duffy Pratt: "I don't think Zillow is doing an 'appraisal' anymore than I am practicing law by saying this statute is hooey." Legislation is moving forward in the Arizona legislature that would provide clearer authorization for services like Zillow to operate (John Cook's Venture Blog (Seattle Post-Intelligencer), Apr. 30; "Arizona House passes bill impacting 'Zestimates'" Inman News, May 1). More: Greg Swann, BloodhoundBlog, Apr. 29 and other posts; Jonathan Lansner, "Arizona has a Zillow problem", Orange County Register, Apr. 18.

• Jack Thompson, call your office: FBI search turns up no evidence Virginia Tech killer owned or played videogames [Monsters and Critics]


• How many zeroes was that? Bank of America threatens ABN Amro with $220 billion suit if it reneges on deal to sell Chicago's LaSalle Bank [Times (U.K.), Consumerist]


• Chuck Colson will be disappointed, but the rule of law wins: Supreme Court declines to intervene in Miller-Jenkins (Vermont-Virginia lesbian custody) dispute [AP; see Mar. 2 and many earlier posts]


• Oklahoma legislature passes, but governor vetoes, comprehensive liability-reform bill [Point of Law first, second, third posts]


• Good primer on California's much-abused Prop 65 right-to-know toxics law [CalBizLit via Ted @ PoL]


• "Defensive psychiatry" and the pressure to hospitalize persons who talk of suicide [Intueri]


• Among the many other reasons not to admire RFK Jr., there's his wind-farm hypocrisy [Mac Johnson, Energy Tribune]


• "Screed-O-Matic" simulates nastygrams dashed off by busy Hollywood lawyer Martin Singer [Portfolio]


• "Liability, health issues" cited as Carmel, Ind. officials plan to eject companion dogs from special-needs program, though no parents have complained [Indpls. Star; similar 1999 story from Ohio]


• First glimmerings of Sen. John Edwards's national ambitions [five years ago on Overlawyered]

(Edited Tues. a.m. to cut an entry which was inadvertently repeated after appearing in an earlier roundup)